Hughes v. Mississippi River & Bonne Terre Railway

• Citation: 274 S.W. 703,309 Mo. 560
• Decision Date: 18 July 1925
• Docket Number: 24037
• Parties: ROY HUGHES v. MISSISSIPPI RIVER & BONNE TERRE RAILWAY, Appellant
• Court: United States State Supreme Court of Missouri

274 S.W. 703

309 Mo. 560

ROY HUGHES v. MISSISSIPPI RIVER & BONNE TERRE RAILWAY, Appellant

No. 24037

Supreme Court of Missouri

July 18, 1925

Appeal from Jefferson Circuit Court; Hon. E. M. Dearing Judge.

Affirmed.

Politte Elvins, W. E. Bennick and P. S. Terry for appellant.

(1) The engineer is not required to keep a lookout for trackmen in the ordinary operation of trains. The engineer has a right to assume that trackmen, although in a place of danger, will, in the exercise of their duty, remove themselves from such place of danger before the train reaches them. Gabal v Railroad, 251 Mo. 259; Nivert v. Railroad, 232 Mo. 647; Kirkland v. Bixby, 282 Mo. 470. (2) It is not the duty of a railroad company to notify section men that extra trains are to pass over the road, but it is the duty of the section men to be on the lookout for the same and to keep out of the way. Woods v. Railroad, 187 S.W. 11; Gabal v. Railroad, 251 Mo. 268. Because section hands may be scattered along the railroad track from one station to another does not deprive defendant of the right to rely upon a clear track, and for this reason such employees are bound to look out for their own safety. The rule as to employees is different from the knowledge applied to a passenger or a stranger. Degonia v. Railroad, 224 Mo. 592; State ex rel. v. Ellison, 271 Mo. 468; Kirkland v. Wabash Receiver, 222 S.W. 462; Evans v. Railroad, 187 Mo. 515; Nivert v. Railroad, 232 Mo. 643. (3) The general law of this State holds: First that the trackmen are under duty to look out for their own safety. Second, that an engineer is not required to keep a lookout for trackmen in the ordinary operation of its trains. Third, the engineer has the right to assume that trackmen, although in a place of danger will, in the exercise of their duty, remove themselves from such place of danger before the train reaches them. Fourth, it is only after the engineer discovers that a trackman is oblivious to his danger and is not going to retire to a safe place that the engineer is obliged to take steps to protect the trackman. And, fifth, the defendant is not liable for the failure of the engineer to ring its bell or sound its whistle to warn section men. State ex rel. v. Ellison, 271 Mo. 463; Degonia v. Railroad, 224 Mo. 564; Cahill v. Railroad, 205 Mo. 409; Rashall v. Railroad, 249 Mo. 509; Gabal v. Railroad, 251 Mo. 257; Morris v. Railroad, 184 Mass. 368; Whittlesey v. Railroad, 77 Conn. 100; Lynch v. Railroad, 159 Mass. 536; Clancy v. Railroad, 192 Mo. 615; McGrath v. Railroad, 197 Mo. 97; Evans v. Railroad, 178 Mo. 508; Loring v. Railroad, 128 Mo. 349; Sharp v. Railroad, 161 Mo. 214; Ring v. Railroad, 112 Mo. 220; Aerkfetz v. Humphreys, 145 U.S. 419. (4) The foreman is under no duty to warn section men concerning danger which the foreman himself does not know. Jackson v. Railroad, 104 Mo. 448. The foreman is under no duty to warn one of his crew of dangers incident to common employment. Ring v. Railroad, 112 Mo. 220; Evans v. Railroad, 178 Mo. 508. The foreman owes no duty to warn the section hand that a train is coming even if he sees it. Evans v. Railroad, 178 Mo. 513. (5) Plaintiff's Instruction C is not predicated upon any rule or custom of the defendant requiring that a man be sent on foot ahead when approaching a cut or curve. Absent such rule or custom the law does not require the section foreman to warn section men that a train is approaching. Evans v. Railroad, 178 Mo. 508; Carter v. Railroad, 249 S.W. 124. There is no evidence that the operatives of Car No. 100 either knew or in the exercise of ordinary care could have known that plaintiff was likely to be at or near the cut wherein he was injured. An instruction which is not predicated upon the evidence is erroneous. Riley v. City of Independence, 258 Mo. 671; Wellmeyer v. Transit Co., 198 Mo. 527. (6) Considering the earning capacity of plaintiff, the damages awarded by the jury were excessive. Crecelius v. Railway, 284 Mo. 44. (7) Where the court failed to determine the issues on the counterclaim, and it is apparent from the findings and record presented that the court or jury failed to pass on the issues raised on all the causes of action stated in both pleadings, this action constitutes reversible error. Marshall v. Armstrong, 105 Mo.App. 234; Henderson v. Davis, 74 Mo.App. 1; Hitchcock v. Baughan, 44 Mo.App. 42; Gawk v. Millowick, 203 S.W. 1006; Thresher Co. v. Speak, 167 Mo.App. 470; Disbrow v. Storage & Fuel Co., 170 Mo.App. 585.

Wm. R. Schneider for respondent.

(1) Appellant states substantially correct general rules of law, but said rules and the authorities cited are not applicable to the case at bar, because the facts are different, in that in the case at bar an ordinary train operation on the ordinary clearview track was not involved. Winkler v. Terminal Ry. Assn., 227 S.W. 627; Sullivan v. Mo. Pac. Ry. Co., 97 Mo. 113; Hardwick v. Wabash Railroad Co., 181 Mo.App. 173; Greenwell v. Ry. Co., 224 S.W. 404. (2) This court has specifically approved the foregoing theory in the recent case of Yokum v. Lusk, 223 S.W. 53. To the same effect is Moore v. Railroad, 85 Mo. 588. The case of Degonia v. Railroad, 224 Mo. 592, does not apply, for the reason stated in Walker v. Wabash Railroad Co., 183 S.W. 636. In the case at bar the evidence was all to the effect that the operator of Car 100 had reason not to expect a clear track at or near the point of collision. (3) Appellant states that "plaintiff's Instruction C is not predicated upon any rule or custom of the defendant requiring that a man be sent on foot ahead when approaching a cut or curve." What the purpose of that statement is, in view of the facts disclosed by the record, we are at loss to know. We call the court's attention, first, to plaintiff's petition, and next to appellant's Rule 907, referring to what section foreman in charge of section crews and section cars must do. Appellant's foreman, Miller, admitted that he did not send a flagman forward at the obscured curve where the collision occurred, but he did send one forward at the previous curve they passed. Respondent testified to the same effect and there was no testimony to the contrary. We next call the court's attention to Instruction C. See Allison v. Railroad, 129 N.C. 336. (4) Appellant's point, to the effect that "the law does not require that the operatives of a train maintain a lookout for section men on the track," is not true where, under the facts and circumstances of the particular case, such operatives have reason not to expect a clear view or a clear track. A practically unbroken line of Missouri decisions recognize in one form or another the above-mentioned modification. And it will be noticed by the Missouri decisions that wherever the general rule was stated as the appellant states it, it has been in a case where the train operatives had reason to expect a clear track, and the court so states and mentions the fact that consequently a warning by train operatives was not necessary or it expressly recognizes exceptions to the above-mentioned general rule, as in the case of Kirkland v. Bixby, 282 Mo. 462. (5) Appellant's point to the effect that, considering the earning capacity of the plaintiff, the damages awarded by the jury were excessive, is not supported by the evidence nor the authority cited by appellant. (6) It is apparent from the findings and record that the jury did pass on the issues raised on all the causes of action stated in both pleadings and allowed the full amount of the set-off claimed by the appellant. Federal Employers' Liability Act, sec. 8661; R. S. 1919, sec. 1233; Cosgrove v. Strange, 194 Mo.App. 14; Nowell v. Mode, 132 Mo.App. 243; Lindsey v. Nagel, 157 Mo.App. 128.

Blair, J. All concur, except Graves, C. J., who dissents.

OPINION

BLAIR

Action for personal injuries under the Federal Employer's Liability Act. Respondent prevailed below and was awarded judgment for $ 21,168. An appeal was granted to the defendant.

The case fell to Division One. An opinion was there written by one of the judges, wherein the judgment below was reversed and the cause remanded for retrial. Two of the judges did not concur, and the case was transferred to the Court en Banc. Since the majority of this court concur in the greater part of such divisional opinion, we will avail ourselves of it, in so far as the same is helpful, appropriately indicating substantial departures therefrom.

"Plaintiff at the time of his injury, was riding with his foreman and other section men upon a motor handcar, which car collided with and was struck by Car 100 coming from the opposite direction at a point near a public-road crossing, whereat there was such a curve in the track, and the cut wherein the track was placed, that the view was obstructed. Car 100 was an automobile so constructed that its wheels would run upon railroad tracks and, at the time of the accident, was running extra, that is, upon no schedule time.

"Counsel for appellant, in their statement, have outlined the petition in substance as follows:

"'This action was tried on an amended petition filed January, 1922, wherein the plaintiff alleged that defendant was engaged in United States commerce; that on or about the 6th day of January, 1920, while plaintiff was employed as a section hand repairing the tracks near Festus, Missouri, it was his duty to travel on said railroad by means of a small motor vehicle.

"'Plaintiff also alleges that the foreman negligently informed him and the other members of the crew that the track was clear, when the foreman knew, or by the exercise of ordinary care could have known, that the track was not clear. He alleges that he relied upon said information received from said foreman and proceeded south on said vehicle....